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Hysteria Over Trump Transgender Bathroom Rule

When the Trump administration rescinded the transgender bathroom guidance in February, the mainstream media portrayed it as a frontal assault on civil rights. But most Americans didn’t agree. They saw Trump’s policy for what it was—an effort to rein in one of the Obama administration’s more serious bureaucratic overreaches.

Nevertheless, the “sky is falling” narrative has continued. Recently, Trump has been accused of slashing the budgets of the two agencies originally responsible for the transgender guidance.  Given how frequently those agencies overstepped their authority in recent years, cuts are entirely appropriate. But Trump’s proposal is mild—maybe even too mild. It increases slightly the budget for the Justice Department’s Civil Rights Division to $148.1 million. While it reduces by a modest 1.6% the current $108.5 million allotment for the Education Department’s Office for Civil Rights, that comes only after extravagant increases in the Obama administration’s final years.

The ability to discuss sensitive issues without demonizing one’s ideological opponents is vital in a democracy. But it seems that Trump Derangement Syndrome is making civil debate about the transgender issue difficult. Two weeks ago, Trump’s OCR quietly closed its investigation into an Ohio school [1] that had declined to permit an anatomically male transgender student to use the girls’ facilities. This was hardly newsworthy. The investigation had already established the facts.  OCR is simply awaiting the resolution of litigation filed last year on the complaining student’s behalf. Nevertheless, the Washington Post took the opportunity to quote a source who insisted the Trump administration was declaring “open season on transgender students.” The Post article accused Trump’s OCR of pushing “to scale back civil rights” and complained that “no reason or legal justification” had been provided for its failure to hold the school in violation of Title IX.

Allow me to supply that reason: The law is not infinitely malleable. Title IX cannot be used, nearly half a century after its passage, to require whatever political activists happen to view as desirable that day. If Americans want their local schools to change their bathroom practices, they must either persuade those schools or pass a new law.

The one and only thing that Title IX prohibits is sex discrimination. If it isn’t sex discrimination, Title IX doesn’t prohibit it. But even that prohibition is subject to exceptions, including a purely permissive regulation that clarifies that schools “may provide separate toilet, locker room, and shower facilities on the basis of sex.”

Is it sex discrimination for a school to decline to allow an anatomically male student who psychologically identifies as female to use the girls’ facilities? Well … in a sense, yes. If that student were anatomically female, using the girls’ facilities would be permitted. But separation by sex for toilets, locker rooms and showers is precisely what the validly-promulgated regulation allows. That should end the matter.

Some anatomical boys implausibly insist they really are girls (and vice versa). But even if they are right that sex is a state of mind, rather than body, it doesn’t help their argument. If they are girls, they are being excluded from the girls’ facilities based on something other than their sex. Title IX therefore doesn’t apply.

The argument for the now-rescinded transgender bathroom guidance was based on a 1989 Supreme Court case—Price Waterhouse v. Hopkins. That case concerned a woman who allegedly had not been promoted because she was perceived as too aggressive. The Court reasoned that if a male employee with the same personality would have been promoted then she has a Title VII sex discrimination claim.

That much makes some logical sense. But it doesn’t apply to bathrooms: Suppose a school has an anatomically male student who identifies as female. Would a female student with the same identification have been permitted to use the girl’s shower? Yes, certainly. But Title IX regulations specifically authorize schools to “provide separate toilet, locker room and shower facilities on the basis of sex.”

Note that applying Price Waterhouse’s logic to bathrooms would require unisex facilities. Even for a run-of-the-mill, male-identifying, anatomical male, it is true that his female counterpart would have been permitted to use the girls’ shower.

This is not to say that the Trump administration won’t apply Price Waterhouse outside the bathroom context. Suppose, for example, a school grades an anatomically male student down in debate class because he comes across as too feminine, while anatomical females are rewarded for femininity. By analogy to Price Waterhouse, that would likely be regarded as a Title IX violation.

Of course, Price Waterhouse may have its limits. For example, Courts of Appeal have been unwilling to apply it to prohibit reasonable grooming rules that make a distinction between the sexes, so long as those rules aren’t more onerous for one sex than for the other. Where are those limits? That is yet to be determined.

Right now the issue is bathrooms, and the Trump administration has rightly interpreted Title IX to give schools discretion. If a school wants to separate its students on the basis of gender identity or even astrological sign, it is legally free to do so. But it can also stick with the traditional separation by sex.

If we want what’s best for students, straight-jacketing schools is rarely a good idea. In some cases, having a transgender student use the facilities assigned to his anatomical sex works fine. In others, putting him with the sex he identifies with may work better. And in still others, assigning him a private facility may be the best solution. Every case is different.

The Trump policy allows for flexibility, without denigrating anyone on account of sex or gender identity. Moreover, it is the only honest and straightforward interpretation of the law.

Heriot is a Professor of Law, University of San Diego and member of the U.S. Commission on Civil Rights.

9 Comments (Open | Close)

9 Comments To "Hysteria Over Trump Transgender Bathroom Rule"

#1 Comment By Joe Jach On June 26, 2017 @ 11:17 pm

I guess it’s appropriate that the oh so dependent gender-confused are confused about where they should urinate and defecate. I hope showering works out better for them

#2 Comment By Siarlys Jenkins On June 27, 2017 @ 10:06 am

I’m glad to hear that someone as sensible as Prof. Heriot is a member of the U.S. Commission on Civil Rights. What he wrote here is both sensible and legally sound.

Trans-sexual is a medical diagnosis, not an oppressed minority. People struggling with a medical condition are entitled to some compassionate privacy while they work out their unfortunate ambiguity. That does not mean that broad social arrangements which are perfectly legal and work well for 99 percent of us need to be overturned or vastly restructured.

And nothing is “the civil rights movement of our time.” The civil rights movement was what it was. Let advocates of other causes make their own case on their own merits, not by wrapping themselves in the mantle of the now-sanctified civil rights movement. That goes for trans-sexuality, gay marriage, PETA, pro-life… they are unique issues that have unique merits and liabilities.

#3 Comment By Rossbach On June 27, 2017 @ 5:01 pm

There are only 2 sexes, so if we segregate restroom use by sex, there only need to be 2 types of restrooms. If some men think that they are women or vice-versa, that’s fine, but why are the rest of us obliged to support this idea? Students who want to dress as members of the opposite sex at school should be cautioned that this will cause problems and that if they don’t want to deal with those problems, then they should dress for school in the appropriate manner. It should be part of their education that out there in the big bad world, the tail does not wag the dog.

#4 Comment By Dk On June 27, 2017 @ 7:38 pm

The only hysteria is the writer’ hyteria.

#5 Comment By MrsDK On June 27, 2017 @ 8:54 pm

Unfortunately the tail is wagging the dog now. My daughter went to see her high school guidance counselor before her senior year, said she was transgender, and they called her by a male name and pronouns all year. If she hadn’t told us, the high school would never have let us know. At least the school decided that she should use the nurse’s bathroom, which is “gender-neutral”.

By the way, her therapist has diagnosed her as autistic, not transgender…BUT if she chooses to take hormones, she can do so through so-called informed consent (although I can’t even get an antibiotic from my doctor without an objective test!) We have found out, through bitter experience, that actual medical evidence-based care has nothing to do with the invasive “transition” pushed by transactivists, Brave voices from both the right and left are joining together to speak out about this…but sometimes it seems like nothing but lawsuits for medical malpractice will ever wake people up to the fact that all is not well under the happy trans umbrella. It is enough to make a parent despair.

#6 Comment By Adriana I Pena On June 28, 2017 @ 8:34 am

I wish that people took stands on something else besides bathrooms…

First this arguments brings bitter memories to a lot of black people who had to endure separate toilets for too long. Yes, it is not the same. But still, it is the state regulating who can and who cannot use certain toilets.

Then, it obscures what is the results of the greatest social engineering feats of the nineteenth century (and early twentieth): getting people to eliminate only in approved receptacles connected to a sewage treatment facility. A social experiment which led to water that was healthier to drink than wine – the reverse had been true until then.

Giving people toilets is not something nice we do for them. It is something nice they do for us when they use it.

Make access to toilets difficult, and it won’t be long before people start voiding in the streets again.

#7 Comment By Trevor Thomas On June 28, 2017 @ 10:25 pm

As I noted over a year ago (in a piece that ran on American Thinker):

s we all know, liberalism has never let facts get in the way of their agenda, and with new efforts derived from an even more perverse interpretation of Title IX, liberals may have finally found a way to make women’s sports more interesting: let men compete as women.

Given the moral depths to which our culture has sunk on sex and sexuality, it’s very easy these days to find “transgender” advocates touting Title IX as giving students wide-ranging “rights” to live a lie.

Read more: [2]

#8 Comment By Adriana I Pena On June 29, 2017 @ 9:03 pm

@MrsDK

Sorry to hear about your daughter. Seems that transgender is the fashion in diagnostics now. I wonder what the next fad will be?

Seriously, while I can believe that there are a genuine transgender cases, too many are the result of misdiagnoses, or youthful confusion, or too rigid a view of what being male or female means.

I talked with a transgender woman. As a male, he was effeminate, which meant all kinds of abuse from his parents “to make a man of him” Eventually he decided that as a male he would never be man enough for what was expected to him, so he decided to become a woman, to get some peace. In spite of that, his sexual orientation did not change, and is now paired with a woman He is “a lesbian in a man’s body” If he had been allowed to be an effeminate man, he would now be married and with kids.

#9 Comment By JWJ On June 30, 2017 @ 11:15 am

Excellent, logical article.

If a private organization wants to have any person use any multi-occupancy restroom and/or changing room in their facility, that is their business. Just make sure it is advertised.

But for schools, girls should not be forced to share showers with males (and vice versa).